Column

If I Had $1.8 Billion Dollars…

$1.8 billions dollars. That’s what the Truth in Sentencing plank of the Federal government’s ‘get-tough-on-crime’ policy will cost in new prison construction alone over the next five years. We’re not even talking about what it will cost to hire the additional correctional service employees to staff these new prisons. Keep in mind as well that Truth in Sentencing – which eliminates the long-standing two-for-one credit on pre-trial custody – is just one of the many new so-called anti-crime initiatives either already in force or soon to be in force courtesy of the Tory law-and-order agenda.

As a defence lawyer writing on this topic, many people will understandably roll their eyes and accuse me of getting rich off the back of Canada’s perceived ‘soft-on-crime’ history (an accusation I will most assuredly plead “not guilty” to). To those people I ask you to indulge me for just a few moments. Yes, I make a living defending people accused of crimes. I also happen to be a citizen and resident of the same communities you all live in. I own a home I don’t want to be broken in to. I drive a car I’d prefer never get stolen. I want my wife to be able to walk through the park alone at night without being sexually assaulted. I pray my children never meet a paedophile. In short, I want to eliminate crime as much as you do. If crime were to be miraculously banished into obscurity tomorrow, I suspect none of you would begrudge me my employment insurance benefits and I would happily transition to a life of blogging, or travel writing. Maybe I’d even teach.

Now, with that out of the way, let’s address the issue at hand. If I had $1.8B to spend on fighting crime, would I be best served by using that money to keep criminals in jail longer? To answer this question in an intelligent and honest way, one needs to be equally intelligent and honest about the nature of deterrence. We put people in jail for a number of reasons. One perfectly valid reason is punitive. We want to punish those who have broken society’s social contract. It makes us feel good to see a bad guy get his due. Admittedly though, beyond satisfying our inherent desire for retribution, jailing people because it makes us feel good is the least utilitarian justification for incarceration. 

From a policy perspective, deterrence is a much stronger peg upon which to hang our custodial hats. We throw people in jail to convince the incarcerated individual to shape up, and to send a message to his friends on the outside that if they break the law as he did, they too will be sent to jail – specific and general deterrence respectively. Once we start analyzing legislative reforms like Truth in Sentencing, and increases to mandatory minimums, through the lens of our deterrence objective, the misdirection of our government’s crime bills becomes readily apparent. Virtually every comparative sentencing study in existence has told us that incarceration does a terrible job of deterring anybody. America, with one of the highest incarceration rates on the planet, has to yet to reap the crime-free panacea that should surely have resulted from their decades of get-tough-on-crime legislation. In fact, there are many reasons to believe that lengthening prison sentences actually makes society less safe in the long run by creating custodial breeding zones in which criminals network and reinforce their anti-social tendencies only to be released into society more dangerous than they were when they went in. But you don’t need to be a social scientist to reach this conclusion – you just need to think like a criminal.

Let’s assume for the moment that I’ve hit my breaking point. Legal Aid in Ontario is never going to pay me enough money to send my kids to that fancy summer camp they’ve been eyeing so I start rationally weighing the possibility of knocking over the liquor store near my law chambers. I’m pretty familiar with the various laws I’d be breaking and I figure with a good lawyer (like one of my partners) representing me, I’ll get no more than two years in jail if I get busted. Subtract from that double time for the days I spend in jail waiting for my trial and then knock a further third off my time for statutory release on Canada’s purportedly lax parole provisions and, bingo! I’m out in under a year. Fantastic. Point me to the nearest LCBO.

But wait! Thanks to the Truth in Sentencing amendments and changes to bail and parole provisions, now all of a sudden I’m going to do twice as much hard time! Better put aside my dreams of becoming a hardcore criminal and get back to docketing.

The example I have just presented is deliberately absurd. Yet it is precisely the type of calculus that our current crime reforms expect criminals to make. Deterrence isn’t failing because our sentences aren’t long enough. Deterrence is failing because nobody thinks they are going to get caught. If a potential criminal honestly believed that he would be caught committing a crime, whether the sentence for that crime was 2 years 4, years or 15 years would matter a lot less than the simple fact that he was going to get caught.

I’m going to assume that many of my readers have little to no experience planning a robbery so let’s focus this discussion on an offence we can more readily comprehend in order to sharpen our discussion on influencing criminal behaviour. Speeding. We all do it. Many of us do it all the time. Most of us have been caught and ticketed at one point or another. Yet, we still speed. Why? Because we know that if we speed every single day for 365 days per year, we might get caught once every 2-3 years. If the mandatory minimum fine for doing 20kph over the limit was raised to $1000 – or even to 30 days in jail – would we speed less? Maybe a little bit. What if you knew that every time you broke the speed limit by 20kph there was a 50/50 chance you’d get dinged with a $25 ticket? Or even a scant 10% chance of getting caught? Now that would cure even my lead foot.

Why do we assume that criminals are any more or less rational in deciding to engage in serious criminal activity? Granted, there are the truly psychopathic and the mentally ill who will continue to commit crimes even if they get caught 100% of the time but this tiny minority is the outlier of our prison population. If you surveyed Canada’s jails from coast to coast you’d be hard pressed to find even a handful of inmates who would admit to you that they expected to get caught when they committed their crimes. Rational criminals don’t bother calculating the length of their potential prison terms as they (correctly) perceive the probability of being caught and made to serve a term of any length as being infinitesimally small.

Let’s apply my speeding example to a common but far more serious criminal offence – impaired driving. Ontario has one of the most draconian penalty provisions for impaired driving anywhere in the world and our law-makers show no signs of reversing that trend. Why would anyone risk a criminal conviction, loss of their licence for 12 months, and a minimum $1000 fine to drive home drunk? Because – they don’t think it’s much of a risk at all. In fact, they’ve probably done it dozens of times before and never been caught. Take that same average drinker and convince him or her that they have a 25% chance of being arrested if they drive home drunk and the penalty becomes almost irrelevant to their calculus because, no matter what the penalty is, it’s not worth it.

So, what would I do with $1.8B in Federal dollars to truly make our communities safer? Set up funds to allow Provinces and municipalities to hire police officers to better enforce the laws we already have. You don’t need to enact new mandatory minimums or keep offenders in jail for a few extra months – all you have to do is convince them that they’re going to get caught in the first place.

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Comments

  1. The arguments presented teeter on a false premise: you describe the only possible justifications for imprisonment as, on the one hand, “because it makes us feel good” and, on the other hand, deterrence – presented with those false alternatives, it’s hardly a surprise that we end up on a road which leads to an argument for less imprisonment. As you know, Section 718 of the Criminal Code lists six objectives of sentencing: denunciation; deterrence; protection of society by means of incapacitation; rehabilitation; promotion of reparations; and promotion of a sense of responsibility. Instead of assessing whether two-for-one sentencing credits serve to further any of those six objectives, you (on the basis of an assertion backed by no evidence whatsoever) focus only on one objective, sneeringly mischaracterize and dismiss one objective, and completely ignore the other four. I’ll admit that you indulge in an engaging bit of sophistry: false premise (the only reason to imprison is to deter) plus hand-waving (deterrence doesn’t work) leads to absurd conclusion (punishment doesn’t matter, only getting caught does). Even if we step outside the framework of the Criminal Code, we can speak in the colloquial and observe that imprisonment can be an appropriate response because those who commit criminal wrongs deserve to be punished by virtue of the fact that they have committed those criminal wrongs – something with which your article resolutely refuses to engage.

    Beyond that glaring, fundamental error which taints the entire article, the rest of it consists mostly of misdirection and unsupported assertions:

    - “America, with one of the highest incarceration rates on the planet, has to yet to reap the crime-free panacea that should surely have resulted from their decades of get-tough-on-crime legislation.”

    If you could provide references to those who think that being tough on crime will result in a society entirely free of crime, that would be much appreciated. It may also be worth noting that while America is not experiencing a crime free society, they have experienced, in the last twenty years, a drop in the murder rate of more than 40% and a drop in the violent crime rate of similar proportion – Canada, not so much.

    - “In fact, there are many reasons to believe that lengthening prison sentences actually makes society less safe in the long run by creating custodial breeding zones in which criminals network and reinforce their anti-social tendencies only to be released into society more dangerous than they were when they went in.”

    Again, to what reasons are you referring? A study, perhaps? Any actual empirical evidence for this? Any evidence whatsoever for the notion that criminals come out of jail *worse* than when they went in (as opposed to simply being *just as bad*)?

    - “Deterrence isn’t failing because our sentences aren’t long enough. Deterrence is failing because nobody thinks they are going to get caught.”

    Or perhaps “deterrence is failing” because criminals don’t indulge in cost-benefit analyses every time they walk out the door. Maybe they don’t care about being caught or punished. Maybe they just enjoy indulging in mayhem and anti-social activities. Maybe they like hurting people. All of which is speculation, since, like your arguments, it is based on *no evidence at all*.

    - “Granted, there are the truly psychopathic and the mentally ill who will continue to commit crimes even if they get caught 100% of the time but this tiny minority is the outlier of our prison population.”

    That conclusion is based on what empirical evidence? Or is pure speculation now the proper basis for making policy pronouncements?

    - “If you surveyed Canada’s jails from coast to coast you’d be hard pressed to find even a handful of inmates who would admit to you that they expected to get caught when they committed their crimes.”

    Has any such survey ever been undertaken? When? By whom? Where was it reported? If not, on what conceivable basis are you asserting the results of this hypothetical survey as conclusive? Because *you* think that such a survey would have such results is not evidence that such a survey would have such results.

    - “Why would anyone risk a criminal conviction, loss of their licence for 12 months, and a minimum $1000 fine to drive home drunk? Because – they don’t think it’s much of a risk at all.”

    Or perhaps because they’re evil. Or because they don’t care about causing injury or death to others. Or because they were really drunk (and hence incapacitated) and didn’t actually make a competent “decision” in any meaningful sense of the term. But, yes, I suppose there is a possibility that they did it because “they don’t think it’s much of a risk at all” – again, though, on what empirical evidence are you relying in making that assertion?

  2. I expect there are a number of Slawians who can cite the studies that support Edward Prutschi’s statements about what deters. As for the other goals of sentencing, some are pretty speculative (establishing a sense of responsibility) and some require more money on in-jail services that tend not to exist (rehabilitation). How spending more time in jail promotes restitution will have to be explained to me.

    The main question of the original post remains: if one has nearly $2 billion to spend on reducing crime, what evidence is there that increasing sentences will be the best use of the money? Governments are supposed to use evidence to come up with the best solutions and the best uses of taxpayer resources. This process always involves judgment, and human beings are fallible and statistics are imperfect. That does not excuse not even trying – but the federal government does not seem to try much. They govern by assertion, and the assertions are governed by a ‘punish first’ mentality that gives a certain gut satisfaction (as E.P. admits) but cannot be shown to be much help in reducing crime.

    I would rather see my tax dollars spent with better judgment.

  3. I agree with John G (and the author) and would like to also address Anonymous’s assertion that:

    “It may also be worth noting that while America is not experiencing a crime free society, they have experienced, in the last twenty years, a drop in the murder rate of more than 40% and a drop in the violent crime rate of similar proportion – Canada, not so much.”

    First of all, for someone so concerned about empirical evidence, I’m surprised that you haven’t provided any to support your own assertions.

    Both Canada and the United States showed homicide rates peaking in the early 1990s, dropping off sharply and then stabilizing (see http://bjs.ojp.usdoj.gov/content/homicide/hmrt.cfm and http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11292-eng.htm#a6).

    This would seem to support the author’s point that vastly increased rates of incarceration in the US haven’t made it any more or less safe than countries with lower incarceration rates (like Canada).

    It may also be worth noting that Statistics Canada (http://www40.statcan.ca/l01/cst01/Legal12b-eng.htm) showed Canada’s homicide rate as 2.1 homicides per 100,000 in 2005, versus 5.6 homicides per 100,000 in the US in the same year according to the US Bureau of Justice Statistics (http://bjs.ojp.usdoj.gov/content/homicide/tables/totalstab.cfm).

    Despite the decrease in US murder rate that you mention (which is actually closer to 30%), the US still experiences twice as much murder as we do.

  4. Although I’m a tad uncomfortable sparring with an anonymous interlocutor, allow me to respond to some of Anonymous’ concerns. Primarily, the writer focuses his critique on my failure to address other principles of sentencing as enunciated by s. 718. As I think is apparent, the article is designed to jump start a discussion on how best to affect deterrence: probability of arrest versus length of sentence. I chose to focus on deterrence as my observation of countless offenders in the course of my practice impressed upon me that other principals of sentencing are poorly addressed (if addressed at all) by custodial sentences.

    Section 718 sets out six principles of sentencing. These principles are to guide judges in crafting fair and effective sentences utilizing all the tools and options at their disposal with jail being only one of many options. The first two principles I have tackled head-on in the piece: denunciation and deterrence. The remaining four are: to separate offenders from society where necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community, and to provide a sense of responsibility in offenders.

    In my respectful view, NONE of these additional principles of sentencing are advanced by lengthening custodial terms beyond their current existing tariffs. There is no reason whatsoever to expect that longer sentences somehow promote greater responsibility in offenders and they clearly do nothing to enhance reparations for victims and the community (indeed, non-custodial sentences that incorporate restitution and community service are far better at addressing this issue). If longer sentences are intended to give offenders more time in custody to facilitate their eventual rehabilitation, one would expect that government would include corresponding additional resources to staff-up custodial rehabilitation programs for all these offenders who will now be serving longer sentences but no such commitment has been made. The only principle I can’t really argue with is separating offenders from society. It goes without saying that keeping an offender in jail longer keeps them out of my neighbourhood longer. But, is this separation the best use of our scarce correctional dollars.

    Will our cities be safer if we catch more criminals but jail them for shorter periods of time? That is the framework for this important debate.